Morris v The Queen - [2010] NZCA 364

IN THE COURT OF APPEAL OF NEW ZEALAND
CA244/2010
[2010] NZCA 364

BETWEENDARRIN JOHN MORRIS

Appellant
ANDTHE QUEEN

Respondent

CA289/2010

AND BETWEEN THE QUEEN

Appellant
ANDDARRIN JOHN MORRIS

Respondent

CA290/2010

AND BETWEEN THE QUEEN

Appellant
ANDBLAIR JAMES GILLIGAN

Respondent

CA291/2010

AND BETWEEN THE QUEEN

Appellant
ANDCLAYTON CLANCE MORRIS BISHOP

Respondent

CA292/2010

AND BETWEEN THE QUEEN

Appellant
ANDJACQUELINE MARIE POLL

Respondent

Hearing:21 July 2010

Court:O'Regan P, Panckhurst and MacKenzie JJ
Counsel:G J King for Morris

S B Edwards and J E Mildenhall for the Crown
L C Ord for Gilligan
T Rickard-Simms for Bishop
J M Miller and S A Thistoll for Poll

Judgment:11 August 2010 4 pm

JUDGMENT OF THE COURT

AWe grant leave to the Solicitor-General to appeal against the sentences imposed on all of the respondents, but dismiss the appeal in all cases.
B We allow Mr Morris’s appeal against sentence. The sentence imposed on him in the High Court is quashed and a sentence for four and a half years imprisonment is substituted.

____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Table of Contents
Para No

Introduction  [1]
The appeals  [2]
The factual basis of the sentencing  [3]
Factual disputes  [6]
Disparity  [10]
The sentences imposed by the Judge  [11]
Mr Morris (CA244/2010)  [12]
Mr Gilligan (CA290/2010)  [16]
Mr Bishop (CA291/2010)  [19]
Ms Poll (CA292/2010)  [22]
The Crown’s appeal  [25]
Starting point: Mr Morris  [26]
Starting points for the other offenders  [32]
Sentence: Mr Morris  [34]
Sentence: Mr Gilligan  [35]
Sentence: Mr Bishop  [41]
Sentence: Ms Poll  [43]
Result  [44]
Introduction
[1]        The respondents were charged with aggravated robbery and wounding with intent to cause grievous bodily harm after an incident in which the victim was beaten and robbed of some $8,000. They were tried before Joseph Williams J and a jury. They were convicted and sentenced as follows:
(a)Mr Morris was found guilty of both aggravated robbery and wounding with intent to cause grievous bodily harm. He was sentenced to six years imprisonment.
(b)Mr Gilligan was also found guilty of aggravated robbery and wounding with intent to cause grievous bodily harm. He was sentenced to 12 months home detention and 160 hours of community work, and ordered to pay reparation of $3,000 to the victim at $40 per week.
(c)Mr Bishop was found guilty of aggravated robbery, but acquitted on the wounding charge. He was sentenced to imprisonment for two years and eight months and ordered to pay reparation of $1400 to the victim. That sum was paid immediately.
(d)Ms Poll was found guilty of aggravated robbery but acquitted on the wounding charge. She was sentenced to six months home detention and 100 hours community work and ordered to pay reparation of $2,500 at $40 per week.

The appeals
[2] The Solicitor-General seeks leave to appeal against the sentences imposed on all four respondents. Mr Morris cross-appeals against sentence. The focus of the Crown appeal against Mr Gilligan and Mr Morris’s cross-appeal is the disparity between the sentences imposed on Mr Morris and Mr Gilligan…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morris v The Queen

Details

AGLC: Morris v The Queen [2010] NZCA 364
Case: [2010] NZCA 364
Decision Date: 11 August 2010

CaseChat Overview and Summary

This case involved four appellants who were charged with aggravated robbery and wounding with intent to cause grievous bodily harm following an incident in which the victim was beaten and robbed of some $8,000. The case was heard by the Court of Appeal of New Zealand, where the appeals of Darrin John Morris, Blair James Gilligan, Clayton Clance Morris Bishop, and Jacqueline Marie Poll were considered. The Crown sought leave to appeal against the sentences imposed on all four respondents, while Mr Morris cross-appealed against his sentence. The primary focus of the Crown's appeal against Mr Gilligan and Mr Morris's cross-appeal was the disparity between the sentences imposed on Mr Morris and Mr Gilligan respectively.

The Court of Appeal found that there was a disparity in the sentences imposed on the respondents, and that the starting point for Mr Morris's sentence should have been four and a half years imprisonment. The Court also found that the Judge had taken into account the mitigating factors, including Mr Morris's age and willingness to participate in rehabilitative programs, and therefore cancelled out the uplift for prior record, resulting in an end sentence of four and a half years imprisonment. The Court of Appeal granted leave to the Solicitor-General to appeal but dismissed the appeal. The Court allowed Mr Morris's appeal, quashed the sentence imposed on him in the High Court, and substituted a sentence of four and a half years imprisonment. The sentences imposed on the other respondents were left undisturbed.

Orders